Tag: Peter Robb

April 1, 2021

Acting NLRB GC Announces Aggressive Enforcement Policy

In a memorandum dated March 31, 2021, the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, proclaimed that the agency would enforce a key federal labor law more ardently than had his predecessor. The subject of the memo itself is telling: “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines”. This action signals an aggressive enforcement policy against private-sector employers, whether currently unionized or not.

Legal Foundation

Section 7 of the National Labor Relations Act (NLRA) generally provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .

This provision protects private-sector (e.g., non-governmental) employees whether they belong to a union or not. In addition to permitting unionization, Section 7 prohibits discrimination against employees who work together to improve working conditions.

Increasingly, the National Labor Relations Board has disagreed over the extent of these protections. The divide typically follows the political spectrum. Under a Democratic administration, the NLRB reads Section 7 more expansively in favor of workers. Republican administrations find the protections more limited, recognizing the inherent prerogative of business owners to control their enterprises.

Current NLRB Composition

The National Labor Relations Board “board” itself is comprised of five seats based in Washington, D.C. Each seat has a five-year term, with distinct expiration dates. As a result, control of the NLRB does not automatically shift with a change in presidential administrations.

President Biden entered office with only four of the five NLRB board seats filled. Three members are Republicans who President Donald Trump appointed. As the practice has been to have no more than three of the five seats filled by representatives of the president’s party, the fourth member is Democrat Lauren McFerran. Biden immediately named McFerran the new Chair of the NLRB, but has not yet filled the open seat. Republican William Emanuel’s term will expire on August 27, 2021. It is certain that Biden will not reappoint Emanuel at that time. Barring inability to gain Senate confirmation, both the currently vacant seat and Emanuel’s seat will be filled by Democrats. That will shift the Board to a pro-labor majority for the first time since August 2017.

The Board ultimately sets NLRB policy, primarily through adjudicating cases, but increasingly through formal rulemaking as well. However, it does not have absolute control of the NLRB’s activities. The General Counsel of the NLRB oversees the initial intake of cases and controls the prosecution of unfair labor practices. Accordingly, the GC has a pivotal function in guiding NLRB policy.

Breaking with historical practice, President Biden fired Trump’s Senate-confirmed General Counsel, Peter Robb, on his first day in office. Robb’s term wasn’t set to expire until November. Biden appointed Peter Sung Ohr as Acting GC. He has nominated Jennifer Abruzzo to fill the position on a permanent basis.

“Mutual Aid or Protection”

Reflecting a more aggressive enforcement policy, the Acting GC’s memo suggests an expansive view of what constitutes activities for employees’ “mutual aid or protection”. Indeed, he asserts, “employee advocacy can have the goal of ‘mutual aid or protection’ even when the employees have not explicitly connected their activity to workplace concerns”. In support of that conclusion, the memo references several cases decided by the NLRB when there was a Democratic majority.

According to the Acting GC, mutual aid or protection can extend to “employees’ political and social justice advocacy”. Among other examples, the memo points to “protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids” as conduct he would find protected by the NLRA because “the employees’ conduct . . . concerned issues within their employer’s control, like . . . willingness to hire immigrants.”

On such issues, the Acting GC effectively sets aside the views of the sitting NLRB majority: “I look forward to robustly enforcing the Act’s provisions that protect employees’ Section 7 rights with full knowledge that recent decisions issued by the current Board have restricted those protections”. The memo suggests that the NLRB will pursue cases falling in the gaps of the current majority’s reasoning regarding Section 7 rights, rather than directly rejecting it. However, there is much reason to be suspicious of that supposed distinction.

“Inherently Concerted”

After acknowledging that “[p]rotected, concerted activity . . . begins with a conversation among employees,” the Acting GC’s memo asserts that “contemplation of group action may be indicative of concerted activity, [but] it is not a required element.” He argues that certain issues “are pivotal” to employees’ common interests such that any group discussions about them are “inherently concerted,” again citing a case decided by a Democratic majority. Despite emphasizing “inherently concerted” to be a “settled doctrine,” the Acting GC concedes, “it remains better articulated as an alternative argument in cases where concert may be proven by traditional means.”

The memo further recognizes that the Board has only found discussions to be inherently concerted when they involve “certain vital categories of workplace life”. These categories primarily include wages and compensation. But the Acting GC suggests that discussions of work schedules, job security, workplace health and safety, and racial discrimination (presumably among others) may also qualify. In conclusion, the Acting GC reports that: “In the future, I will be considering these and other appropriate applications of the inherently concerted doctrine in suitable cases.”

Employers Be Warned

It is not surprising that Biden’s NLRB General Counsel will follow a more aggressive enforcement policy. Yet, it is noteworthy that the Acting GC has blatantly announced his intention to begin doing so before his permanent replacement is confirmed. He also does so under a Republican Board majority that will remain in place for several more months.

Expect the NLRB’s regional offices to pursue more cases against employers now to line them up for a new Board majority toward the end of the year. This approach will expedite the predictable shift in labor policy to favor unions and employees more than was the case under the Trump administration.

Companies should be cautious before disciplining employees for any activities that may run afoul of the aggressive enforcement policy reflected in the Acting GC’s memorandum. Management should work with experienced labor counsel to balance the risks in such scenarios.

Despite current favorable Trump-era precedents, employers might also consider reviewing their policies and procedures that may come under renewed NLRB scrutiny. Examples include social media policies, confidentiality policies, work rules, and investigation procedures. Employers facing or anticipating unionizing campaigns should prioritize such a review. Arguably-minor unfair labor practice allegations can have a significant adverse impact on businesses as fodder for organizing efforts.

Click here to download a copy of this March 31, 2021 Acting GC memorandum.

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March 23, 2018

General Counsel Reports on the NLRB

On March 14, 2018, NLRB General Counsel Peter Robb issued a memorandum in response to questions and concerns raised at the Midwinter Meeting of the American Bar Association’s Practice and Procedure Under the National Labor Relations Act Committee of the Labor and Employment Law Section. This is an annual tradition for the General Counsel of the National Labor Relations Board.

As the newly confirmed General Counsel, this is Robb’s first time issuing such a report. For those who don’t have the time to read all 27 pages, here are some highlights.

Reorganization of Field Operations

In his first months as General Counsel, Robb has raised many eyebrows and ruffled a fair number of feathers. This has primarily occurred through his designs on reorganizing how the NLRB’s field offices operate.

On this subject, the GC’s memorandum offers:

The General Counsel is currently soliciting input from Agency HQ and Field staff for the purpose of formulating recommended changes to existing case processing procedures. At an appropriate future point, the General Counsel, again in deliberation with Agency staff, will examine and may propose, as appropriate, recommended changes to the structure of the Field offices. No decisions have been made at this time.

The report further indicates that the changes are under consideration for budgetary purposes, adding:

The results of such changes may be to generate benefits in several potential areas, including perhaps: improvement in the efficiency, timeliness, quality of services and organizational decision making, elimination of unnecessary levels of management and administrative support, maximization of employee performance, reduction in travel and other case processing expenses.

The General Counsel also suggests that any changes to the structure of the field offices “will be open for public comment prior to implementation.” He identifies a target effective date of October 1, 2018.

Unfair Labor Practices

In the memorandum the General Counsel reports case-handling statistics for Fiscal Year 2017.

The NLRB received 19,280 charges last year. It settled 95% of them. The agency issued 1,263 formal complaints based on charges. Overall, the NLRB found merit in only 38.6% of the charges filed.

The report includes much more data on topics including:

Motions for Summary Judgment
Deferrals
Subpoenas
Section 10(j) Injunctions
Submissions to the Division of Advice
Charges on Particular Subjects

Representation Cases

Union representation petitions resulted in 1,205 elections in FY 2017. Unions won 71% of these elections. Across these elections 80.5% of the 81,646 eligible employees voted. Overall, 46.7% of the eligible employees voted “yes” and 33.7% voted “no.”

The NLRB also conducted 173 decertification elections. Unions won 32% of these elections, yielding a 68% decertification rate.

The GC’s memorandum also includes a chart of days to election from FY08 to FY17. From 2008 to 2014, there was a median each year of 37 or 38 days from filing of an election petition to the date of the election. In 2015 the number dropped to 33. Over the past two years it has been much lower at 23 days.

The average size of bargaining units has ranged from 24 to 28 between FY07 and FY17. The 2017 average of 24 employees matches that of 2007, 2009, and 2017.

More to Come from the General Counsel and the NLRB

This will not be the last we hear about the NLRB this year. There is still one vacancy on the 5-member Board. Management-side labor attorney John Ring awaits Senate confirmation. When he, or someone else, joins the Board, the new member will join Chairman Marvin Kaplan and Member Bill Emanuel giving the NLRB a Republican majority. They are likely to get back to work changing Obama-era precedents favorable to labor.

One issue still on the table is the fate of the Obama Board’s so-called “quickie” election rules. Late last year a temporary Republican majority issued a request for information suggesting an interest in changing the representation procedures. The Board has now twice extended the time to respond to the RFI. The current deadline is April 18, 2018.

Labor attorneys representing both sides will also be interested to see whether and how the General Counsel proposes to reorganize the NLRB’s field offices. This could significantly affect how the agency operates.

November 8, 2017

Peter Robb Is New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed Peter Robb to a 4-year term as the next General Counsel of the National Labor Relations Board. Robb previously served as an NLRB attorney, but has been in private practice for the past 30+ years.

The Senate voted 49-46 along party lines. Before Robb’s confirmation, Jennifer A. Abruzzo had served as Acting General Counsel since Richard Griffin’s term expired on October 31, 2017.

The new NLRB General Counsel will be responsible for investigating and prosecuting unfair labor practice cases and overseeing the NLRB field offices.

Meet the New NLRB General Counsel

Peter B. Robb most recently practiced labor and employment law with Downs Rachlin Martin PLLC in Vermont since 1995. He previously practiced with Proskauer Rose LLP.

From 1981-1985 he served as chief counsel to NLRB Member Robert P. Hunter (R). Before that, he had been an NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University and his J.D. from the University of Maryland School of Law.

About Jennifer Abruzzo

Jennifer Abruzzo became the NLRB’s Deputy General Counsel on November 4, 2013. That was the same day that Richard Griffin began his 4-year term as General Counsel. Before that, she held other positions in the General Counsel’s office. In total, Abruzzo has spent more than 20 years with the National Labor Relations Board. Her other positions have included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. She also served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, D.C.

Abruzzo is not known to have taken any significant action during her one week as Acting General Counsel.

Rosemary Collyer is the only woman to have served as NLRB General Counsel in a non-acting capacity. She held the position from 1984-1989. She is now a Senior United States District Judge on the U.S. District Court for the District of Columbia and the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court.

Status of NLRB Transition

Robb’s confirmation as the new NLRB General Counsel completes the initial transition from the Obama-era Labor Board. The General Counsel operates independently from the 5-member National Labor Relations Board, but has considerable influence over the cases brought to the Board for adjudication.

With two Trump appointees (William Emanuel and Marvin Kaplan) already serving on the Board, the 3-2 Republican majority will likely get to work rolling back many positions taken by their recent pro-labor predecessors.

However, NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. This will create a third Labor Board vacancy in President Trump’s first year in office. Morgan, Lewis & Bockius LLP partner John Ring and California attorney/politician Mike Stoker have been mentioned as potential nominees.